Institute for Contemporary Affairs, founded jointly with the Wechsler Family Foundation

Vol. 14, No. 9 April 10, 2014

In March 2014, Saeb Erekat, the head of the Palestinian negotiating team, prepared a 65-page document that surveys the diplomatic process and offers a list of recommendations for the PA to achieve Palestinian sovereignty in the territories demarcated by the 1967 lines. PA Chairman Mahmoud Abbas has recently implemented some of these recommendations.

The recommendations include submitting a request to immediately join the Geneva Conventions; declaring the impossibility of extending the negotiations after the end of the nine-month period on April 29, 2014; and opposing the Israeli proposal that the settlement blocs become part of Israel in any final agreement.

The plan also includes activating bilateral committees with Russia, the EU, and the UN, and cooperating with the monitoring committee of the Arab Peace Initiative, to muster support for the Palestinian anti-settlement position; urging the states of the world to uphold the European Union’s guidelines regarding settlement activity; and escalating the peaceful popular struggle against settlements and the [security] fence.

The PA’s latest moves reflect the long-term strategy Abbas has been implementing, which involves using diplomatic means to obtain international recognition of a sovereign Palestinian state along the 1967 lines without the Palestinians having to make concessions on the fundamental issues of the conflict, particularly the refugee issue and what is called the “right of return.”

The signing of the 15 international conventions is part of a gradual Palestinian move to statehood which, unlike a unilateral declaration of statehood, does not occur with one move. Abbas has previously made political moves in defiance of the United States and Israel without fearing the pressures and threats directed at him, as in his November 2012 appeal to the UN General Assembly for an upgrade of the PLO’s status to UN nonmember observer state. Now, too, he feels confident in his ability to take unilateral steps without incurring serious damage.

The Palestinians believe they can use the diplomatic-legal arena to overcome Israel’s power and gradually subject it to diplomatic and economic pressures to unilaterally withdraw from the West Bank in a way similar to Israel’s unconditional withdrawal from Gaza in 2005.

The Israeli-Palestinian diplomatic process encountered a crisis and a dead-end with the unilateral announcement on April 1, 2014, by Mahmoud Abbas (Abu Mazen), chairman of the Palestinian Authority, of Palestine’s application to join fifteen international institutions and conventions, most notably the Fourth Geneva Convention.

The Palestinians’ Dramatic Turnabout

Abbas, who refers to himself as “president of the state of Palestine” and also holds the titles of head of the PLO and leader of Fatah, explained the decision in terms of Israel’s reneging (so he claims) on its promise to free the fourth batch of Palestinian prisoners, which was supposed to include 26 prisoners, on March 29, 2014. As Abbas put it:

We said that if they [the prisoners] are not released we will begin applying for membership to 63 international organizations, agreements, and conventions, and it was decided by consensus that we will sign several agreements that make possible the joining of the organizations and conventions.

Regarding the applications to join the fifteen conventions (including the Fourth Geneva Convention), Abbas said he did not “think we need approval for this, we can join these immediately.”1

The Israeli Reaction

Israeli Prime Minister Benjamin Netanyahu accused the Palestinian Authority of fundamentally violating the understandings that were reached in the negotiations under U.S. mediation, and warned the Palestinians against unilateral moves that would constitute a double-edged sword for them. At a meeting of the Israeli cabinet on April 6, 2014, Netanyahu said:2

In recent months the State of Israel has conducted negotiations with the Palestinians in order to reach a peace agreement. Israelis expect peace, a genuine peace, in which our vital national interests are assured, with security first and foremost. During these talks we carried out difficult steps and showed a willingness to continue implementing moves that were not easy, in the coming months as well, in order to create a framework that would allow for putting an end to the conflict between us.

Just as we were about to enter the framework for the continuation of negotiations, Abu Mazen rushed to declare that he was not prepared to even discuss recognizing Israel as the nation state of the Jewish people. He did this even though he knows that there will not be an agreement without recognizing the State of Israel as the nation state of the Jewish people – something which the U.S. president and other world leaders also made clear.

Unfortunately, later, a moment before we were to reach an agreement to continue the talks, the Palestinian leadership quickly moved to unilaterally join 15 international conventions, thus fundamentally violating the understandings that were reached with American involvement.

The threats of the Palestinians to turn to the UN will not influence us – the Palestinians have a lot to lose from such unilateral action. They will only get a state via direct negotiations, not empty declarations or unilateral moves. These only push a peace agreement further away and unilateral moves by them will be met with unilateral moves by us. We are ready to continue the talks, but not at any price.

Feverish efforts by the U.S. administration to return the Palestinians to the negotiating table and refrain from unilateral steps have so far failed. The Palestinians’ next target date is April 29, 2014, when the nine-month negotiating period, as decided at its inception, comes to an end.

A Preplanned Palestinian Strategy

In March 2014, Saeb Erekat, a member of the PLO executive committee and head of the Palestinian negotiating team, prepared a 65-page document that surveys the developments in the diplomatic process and offers a list of recommendations for the PA, some of which Abbas has recently implemented.3

Erekat outlined the dangers entailed by Israel’s policy:

Despite the intensive efforts by the U.S. administration and the other members of the Quartet to sustain the negotiations on a final-status agreement between the two sides, Israeli and Palestinian, the Israeli government persisted in acts that destroy the peace process, including an announcement on new plans for building in the settlements, the killing of innocent individuals among the Palestinian people, the destruction of homes, the expulsion of residents, the confiscation of lands, and the tightening of the blockade on the Gaza Strip.

In Erekat’s view, Israel’s political moves and concrete measures are intended to create a reality that prevents the Palestinians from establishing a state and leaves the occupation in place. As Erekat wrote:

The Israeli government has demonstrated through its actions that its agreement to renew the negotiations does not entail a change in its strategy of preserving the status quo, which means:

1. Leaving the Palestinian Authority without governmental powers.

2. Leaving the Israeli occupation in place without any price being paid.

3. Removing the Gaza Strip from the Palestinian domain.

4. Blaming the PLO for refusing to conduct negotiations.

5. Preventing the PLO from continuing to apply for membership to international institutions, conventions, and contracts after having become an observer state on November 29, 2012.

In the section on recommendations, Erekat set forth the steps the PA must take to achieve the goal of applying Palestinian sovereignty to the territories demarcated by the 1967 lines:

1. Submit a request to immediately join the First, Second, Third, and Fourth Geneva Conventions of 1949 and the accompanying protocols of 1977. Upon receipt of the request to join, the president of the Swiss Federation will announce the acceptance of the state of Palestine as a member that has signed these conventions.

2. Declare to the U.S. administration, the European Union, Russia, and the UN the impossibility of extending the negotiations after the end of the nine-month period on April 29, 2014.

3. Oppose the Israeli proposal that the settlement blocs become part of Israel in any final agreement, as this [the Israeli proposal] is regarded as adding insult to injury [literally: the excuse is more repellant than the sin], since it is included in the framework of conditions and not in the negotiations.

4. Emphasize that the release of 104 prisoners will not be linked to negotiations or to settlement activity, but to the Palestinian side’s refraining from applying for membership to the international institutions during the nine-month period.

5. Activate the bilateral committees with Russia, the European Union, and the UN, and cooperate with the monitoring committee of the Arab Peace Initiative, as ways of mustering support for the Palestinian anti-settlement position; announce an international campaign whose title is: “Settlement Destroys the Peace Process”; and urge the states of the world to uphold the European Union’s guidelines regarding settlement activity.

6. Activate, organize, and escalate the peaceful popular struggle against settlement and the [security] fence while building a broader international alliance for this purpose.

7. Outline a strategy for joint action with the Israeli peace camp and promote this in all the ways available.

In addition, Erekat recommended the following steps:

1. Adhere to all the Palestinian positions set forth in the letter that President Mahmoud Abbas sent to U.S. President Barack Obama on December 8, 2013, emphasizing that these positions express the Arab positions as presented in the announcement of the Council of Arab Ministers on December 21, 2013.

2. In light of the Israeli government’s insistence on continued settlement activity, and the 41 percent increase in terrorism by settler groups during the second half of 2013, as well as the ongoing acts of cold-blooded killing of members of our people, the destruction of homes, the expulsion of residents, the attacks on the blessed Al-Aqsa Mosque, and the tightening of the blockade on the Gaza Strip, we are obligated to apply to join the First, Second, Third, and Fourth Geneva Conventions of 1949 and the additional protocols of 1977.

3. Act to remove the blockade on the Gaza Strip in all its forms, and intensify efforts to achieve a Palestinian rapprochement [with Hamas] by implementing what was agreed in Cairo and Doha, there being no alternative but to derail the Israeli strategy, which seeks to remove the Gaza Strip from the Palestinian domain.

4. Continue to act with the European Union and the other countries of the world to keep implementing the European guidelines regarding the settlements that came into force on January 1, 2014.

5. Act jointly with the monitoring committee of the Arab Peace Initiative to implement these recommendations and uphold the principles of international law pertaining to the Palestinian problem.

Erekat asserted that

If the Israeli government decides to continue its strategy of maintaining the status quo, then we must apply for membership to the international institutions, and if it reacts by using force, we must then:

1. Convene the Palestinian National Council and call on the Hamas movement and the Islamic Jihad movement to join the meeting, and subsequently elect a new executive committee that will constitute a temporary government of the state of Palestine, in keeping with UN General Assembly resolution of November 29, 2012, which upgraded the status of Palestine within the 1967 lines, whose capital is eastern Al-Quds [Jerusalem], to an observer state, and to this end [the executive committee] will launch a genuine process of Palestinian reconciliation.

2. Thwart the Israeli government’s strategy of leaving the Authority without powers, maintaining the occupation without paying any price for it, and removing Gaza from the Palestinian domain, so as to prepare to broach [by Israel] the idea of one state with two establishments [governments], and this by applying to join the international institutions, protocols, and conventions, particularly the four Geneva Conventions.

3. Prepare to counteract the Israeli campaign, which will pin the blame on the Palestinian side, by sending Palestinian delegations to explain the Palestinian positions to the countries of the world.

At a conference in Ramallah that discussed the “resistance strategy” on April 5, 2014, Erekat said the PA’s decision to join the fifteen international agreements and conventions was final and inalterable, but the PA would delay applying for membership to 48 additional international organizations, conventions, and agreements if Israel retracted its decision not to release the fourth batch of prisoners. Erekat stressed that if Israel did not release the prisoners, the PA would see itself as having no further obligations in this regard.4

In his speech to the Ramallah conference, Erekat called on Hamas to return to the path of national rapprochement in line with the agreements signed in the past, and said, “I declare to all the world, and in the name of President Abu Mazen and in the name of the executive committee [of the PLO], that the Hamas movement is a Palestinian movement, and that it was not and will not be a terrorist organization.”5

Where Is the Palestinian Authority Heading?

The PA’s latest moves reflect the long-term strategy Abbas has been implementing during his tenure as president, which involves using diplomatic means to obtain international recognition of a sovereign Palestinian state along the 1967 lines without the Palestinians having to make concessions on the fundamental issues of the conflict, particularly the refugee issue and what is called the “right of return.”

On April 2, 2014, the PLO’s Negotiations Department, under Saeb Erekat, published a document explaining its most recent moves, including its signing of 15 international conventions. Erekat personally sent out the document on April 5. His memo argued the logic behind Abbas’ action:

This is the fulfillment of Palestine’s rights and has nothing to do with negotiations or the reaching of an agreement. As President Abbas expressed during the announcement, the Palestinian position remains unchanged. The PLO seeks to achieve an independent and sovereign Palestinian state on the 1967 border with East Jerusalem as its capital, with a just solution to the refugee issue based on UN General Assembly Resolution 194.

The memo further explains that the treaties that were signed “are vital to continued Palestinian institution-building, good governance, and the upholding of human rights, all of which form the basis for an independent and sovereign state of Palestine.”

The legal logic of such a move might be found in Professor James R. Crawford’s The Creation of States in International Law. Crawford, who took part in the discussions at the International Court of Justice in The Hague over the legality of Israel’s security fence, describes how a state might emerge through an “accretion of powers in a local unit over a period of time” and not just through a declaration of independence. He cites Judge Sir Gerald Fitzmaurice, who wrote that the “concluding of a treaty may be part of a process (or even constitute the act) whereby the State not fully sui juris (possessing by itself legal standing) is becoming so.”6 In other words, the signing of the 15 international conventions, according to this logic, is part of a gradual Palestinian move to statehood which, unlike a unilateral declaration of statehood, does not occur with one move.

Abbas has previously made political moves in defiance of the United States and Israel without fearing the pressures and threats directed at him, as in his November 2012 appeal to the UN General Assembly for an upgrade of the PLO’s status to UN nonmember observer state. Now, too, he feels confident in his ability to take unilateral steps without incurring serious damage.

The Palestinian strategy is based on the assessment that Israel’s options are very limited.Israel, the Palestinians believe, may indeed exert heavy economic and diplomatic pressure on the PA, but not to the point of threatening the PA’s survival or risking a Third Intifada. The Palestinians know that the overriding Israeli interest of maintaining security stability in the West Bank has, on more than one occasion, led it to retract a decision to withhold tax revenues from the PA; Israel wants to avoid tensions, violence, and terror that sometimes have also afflicted the PA itself.

The Israeli perception of the “lack of a moderate alternative” to Abbas’ rule also boosts the PA’s confidence, leading it to turn to the diplomatic-legal arena where it can count on the automatic majority of the Arab, Muslim, and nondemocratic countries. The Palestinians believe they can use this arena to overcome Israel’s power and gradually subject it to diplomatic and economic pressures to begin a process of unilateral withdrawal from the West Bank in a way similar to Israel’s unconditional withdrawal from Gaza in 2005.

Although Abbas repeats the mantra of a “peaceful struggle” in tandem with the diplomatic campaign, in practice terror continues, including attempts to murder both Israeli civilians and security forces. Furthermore, the PA signals unequivocal support for terror by demanding the immediate release of all the Palestinian prisoners, many of whom were sentenced to lengthy prison terms for their role in terror attacks and the murder of Israeli civilians, including suicide bombings. These terrorists are treated as heroes by the PA, which also provides them a very generous basket of economic and social benefits; their average salary while in prison is even higher than that of members of the security forces.

The PA revealed its true face when it officially requested the Islamic terrorist organizations, Hamas and Islamic Jihad, to participate in a meeting of the Palestinian National Council, which is supposed to elect a new Palestinian leadership to serve as a temporary government of the Palestinian state. The PA does not view Hamas and Islamic Jihad as terrorist organizations but, rather, as legitimate political groups that can be part of the Palestinian government.

The PA is preparing the ground in stages for de facto international recognition of a Palestinian state along the 1967 lines that is under “Israeli occupation,” and all that will remain is the official declaration of the state’s establishment.

The demand for full Palestinian sovereignty along the 1967 lines also entails Palestinian control over the border crossing between the West Bank and Jordan, with likely major implications for the stability of the Hashemite Kingdom, which has a Palestinian demographic majority. Paradoxically, Israel’s accommodation under the presence circumstances of the Palestinian demand for sovereignty over the border with Jordan would likely prompt U.S., European, and, of course, Jordanian pressures on Israel to avoid such a transfer of authority and maintain its military presence in the West Bank.